Dunstan et al v. comScore, Inc.

Filing 226

MOTION by Defendant comScore, Inc. to compel (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bowland, Robyn)

EXHIBIT B

99999.77815/5444519.1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,
Plaintiffs,

Case No. 1:11-cv-05807
Hon. James F. Holderman

v.

Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS MIKE HARRIS’S AND JEFF DUNSTAN’S ANSWERS TO
TO DEFENDANT COMSCORE, INC.’S SECOND SET OF INTERROGATORIES
Plaintiffs Mike Harris and Jeff Dunstan (collectively, “Plaintiffs”) provide the following
answers to Defendant comScore, Inc.’s (“Defendant” or “comScore”) Second Set of
Interrogatories:
Answers to Interrogatories
11.
State with particularity what instrumentalities, equipment, devices, or other
objects used by Plaintiffs in connection with OSSProxy which Plaintiffs contend constitute a
facility through which an “electronic communications service” is provided, as that term is used
in 18 U.S.C. §2701(a) and 18 U.S.C. §2510(15). For each such instrumentality, equipment,
device, or other object, describe in detail how such service provides to users thereof the ability to
send or receive wire or electronic communications.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected by the attorney work product doctrine. Plaintiffs further object to this
Interrogatory to the extent that it calls for a conclusion of law (i.e., conclusions about the legal
significance of the instrumentalities, equipment, devices, or other objects used by any party in
connection with OSSProxy), or otherwise attempts to re-cast legal issues as factual matters.
Subject to and without waiving these objections, Plaintiffs state that their respective
computers on which OSSProxy ran constitute a “facility” through which “electronic

communications service[s]” are provided. Plaintiffs further state that, at this stage of the
litigation (e.g., with having conducted only discovery into class-wide issues per comScore’s
request to bifurcate discovery), Plaintiffs have not had a sufficient opportunity to gather certain
further information, which they anticipate will be responsive to this Interrogatory. Plaintiffs
believe that merits discovery will reveal such additional information. Plaintiffs’ investigation
continues and they reserve their right to supplement their answer to this Interrogatory as
appropriate.
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12.
Identify with particularity the categories and types of data Plaintiffs contend
comScore collected from its Panelists that exceeded the scope of the Panelists’ consent.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected by the attorney work product doctrine. Plaintiffs further object to this
Interrogatory to the extent that it calls for a conclusion of law (i.e., to conclude whether statutory
violations lie based on categories and types of data collected by OSSProxy that exceed the scope
of consent), or otherwise attempts to re-cast legal issues as factual matters.
Subject to and without waiving these objections, Plaintiffs state that all categories and
types of data comScore collected through OSSProxy from Panelists exceeded the scope of the
Panelists’ consent. Plaintiffs further state that, pursuant to Fed. R. Civ. P. 33(d), pages 12–13 and
23–24 of Plaintiffs’ Memorandum in Support of Their Supplemental Motion for Class
Certification (Dkt. 154) are also responsive to this Interrogatory. Plaintiffs further state that, at
this stage of the litigation (e.g., with having conducted only discovery into class-wide issues per
comScore’s request to bifurcate discovery), Plaintiffs have not had a sufficient opportunity to
gather certain further information, which they anticipate will be responsive to this Interrogatory.
Plaintiffs believe that merits discovery will reveal such additional information. Plaintiffs’

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investigation continues and they reserve their right to supplement their answer to this
Interrogatory as appropriate.
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13.
Explain how Plaintiffs contend comScore’s fuzzification or obscuring process
does not constitute “mak[ing] commercially viable efforts to automatically filter” confidential
information.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected by the attorney work product doctrine. Plaintiffs further object to this
Interrogatory to the extent that it calls for a conclusion of law (i.e., to conclude that comScore
breached its contractual duty by “fuzzifying” data instead of filtering it), or otherwise attempts to
re-cast legal issues as factual matters.
Subject to and without waiving these objections, Plaintiffs state that, pursuant to Fed. R.
Civ. P. 33(d), pages 13–14 of Plaintiffs’ Memorandum in Support of Their Supplemental Motion
for Class Certification (Dkt. 154), are responsive to this Interrogatory, explaining Plaintiffs’
contention that comScore’s “fuzzification” or “obscuring process” does not constitute “‘mak[ing]
commercially viable efforts to automatically filter’ confidential information.” Plaintiffs further
state that, at this stage of the litigation (e.g., with having conducted only discovery into classwide issues per comScore’s request to bifurcate discovery), Plaintiffs have not had a sufficient
opportunity to gather certain further information, which they anticipate will be responsive to this
Interrogatory. Plaintiffs believe that merits discovery will reveal such additional information.
Plaintiffs’ investigation continues and they reserve their right to supplement their answer to this
Interrogatory as appropriate.
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14.
Describe and state with particularity the bases for Plaintiffs’ contention that
comScore has failed to make commercially viable efforts to purge confidential information from
its database.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected the attorney work product doctrine. Plaintiffs further object to this
Interrogatory to the extent that it calls for a conclusion of law (i.e., to conclude that comScore
breached its contractual duty by choosing to attempt to manually obfuscate confidential
personally identifiable information in its database rather than purge it), or otherwise attempts to
re-cast legal issues as factual matters.
Subject to and without waiving these objections, Plaintiffs state that, pursuant to Fed. R.
Civ. P. 33(d), pages 14–16 of Plaintiffs’ Memorandum in Support of Their Supplemental Motion
for Class Certification (Dkt. 154), are responsive to this Interrogatory, explaining Plaintiffs’
contention that comScore has failed to make commercially viable efforts to purge confidential
information from its database. Plaintiffs further state that, at this stage of the litigation (e.g., with
having conducted only discovery into class-wide issues per comScore’s request to bifurcate
discovery), Plaintiffs have not had a sufficient opportunity to gather certain further information,
which they anticipate will be responsive to this Interrogatory. Plaintiffs believe that merits
discovery will reveal such additional information. Plaintiffs’ investigation continues and they
reserve their right to supplement their answer to this Interrogatory as appropriate.
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15.
Please set forth, for each named plaintiff, each and every item of “Damage”
alleged in paragraph 105 of the Second Amended Complaint.
ANSWER: Plaintiffs object to this Interrogatory on the basis that it is duplicative of
other requests (see, e.g., Request No. 11 of Defendant comScore, Inc.’s First Set of
Interrogatories, dated March 9, 2012).

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Subject to and without waiving this objection, Plaintiffs state that their answers to
Interrogatory Nos. 6 and 11 of Defendant comScore, Inc.’s First Set of Interrogatories to Mike
Harris and Jeff Dunstan, dated March 9, 2012, are responsive to this Interrogatory. Plaintiffs
further state that, at this stage of the litigation (e.g., with having conducted only discovery into
class-wide issues per comScore’s request to bifurcate discovery), Plaintiffs have not had a
sufficient opportunity to gather certain further information, which they anticipate will be
responsive to this Interrogatory. Plaintiffs believe that merits discovery will reveal such
additional information. Plaintiffs’ investigation continues and they reserve their right to
supplement their answer to this Interrogatory as appropriate.
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16.
Regarding the “Loss” caused by defendant’s conduct as alleged in paragraph 107
of the Second Amended Complaint, please specify: (i) the beginning and ending date of the oneyear period in which one or more persons suffered a Loss aggregating $5,000 in value in real
economic damages; (ii) what, if any, event occurred on the beginning date of such one-year
period which initiated the running of such period; (iii) the total amount of Loss suffered by each
named plaintiff during such one-year period and all items which constituted part of such loss;
and (iv) the identity of all persons who sustained Loss which Loss was aggregated during such
one-year period to equal or exceed $5,000, together with the total amount of Loss suffered by
each such person, and all items which constituted part of such Loss.
ANSWER: Plaintiffs object to this Interrogatory to the extent that it calls for a
conclusion of law (i.e., conclusions about the types of remedial measures that constitute “Loss”
for purposes of the CFAA). Plaintiffs also object to this Interrogatory as compound.
Subject to and without waiving these objections, Plaintiffs state that, at this stage of the
litigation (e.g., with having conducted only discovery into class-wide issues per comScore’s
request to bifurcate discovery), Plaintiffs have not had a sufficient opportunity to gather certain
further information, which they anticipate will be responsive to this Interrogatory. Plaintiffs
believe that merits discovery will reveal such additional information. Plaintiffs’ investigation

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continues and they reserve their right to supplement their answer to this Interrogatory as
appropriate.
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17.
Set forth separately and in detail each and every item of Economic Damages each
named plaintiff suffered as a result of defendant’s alleged violations of the CFAA.
ANSWER: Plaintiffs object to this Interrogatory to the extent that it calls for a
conclusion of law (i.e., conclusions about the types of remedial measures that constitute “Loss”
for purposes of the CFAA ). Plaintiffs further object to this Interrogatory on the basis that it is
duplicative of other requests (see, e.g., Request Nos. 15 and 16, supra; see also Request No. 6 of
Defendant comScore, Inc.’s First Set of Interrogatories to Mike Harris and Jeff Dunstan, dated
March 9, 2012).
Subject to and without waiving these objections, Plaintiffs state that, at this stage of the
litigation (e.g., with having conducted only discovery into class-wide issues per comScore’s
request to bifurcate discovery), Plaintiffs have not had a sufficient opportunity to gather certain
further information, which they anticipate will be responsive to this Interrogatory. Plaintiffs
believe that merits discovery will reveal such additional information. Plaintiffs’ investigation
continues and they reserve their right to supplement their answer to this Interrogatory as
appropriate.
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18.
Do you contend that the following definition of “filter” is incorrect? “Any
software feature or program that functions automatically to screen data.” If you contend that the
above definition is incorrect, please state in detail the basis for your contention.
ANSWER: Plaintiffs object to this Interrogatory on the basis that it is vague and
ambiguous. Words mean different things in different contexts, and this Interrogatory asks about
the definition of “filter” without providing any context.

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Subject to and without waiving this objection, through a Google search Plaintiffs have
found this definition of “filter” used once (See
http://aslstem.cs.washington.edu/signs/search?minrate=0&page=3&sort=4&user=izapa_stela),
therefore Plaintiffs agree that this is one possible definition of “filter.”
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19.
Do you contend that the Plaintiffs entered into a binding agreement when they
clicked their acceptance on the ULA? If not, describe in detail the basis for your contention. If
so, identify the entity or entities with which they entered into such an agreement.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected by the attorney work product doctrine or calls for a conclusion of law (i.e.,
conclusions about the legal significance of the ULA). Plaintiffs further object to this
Interrogatory on the basis that the phrase “clicked their acceptance” is not defined and therefore,
is vague and ambiguous (it’s unclear if this Interrogatory seeks admission or denial about
whether Plaintiffs read the ULA and clicked “Accept” or “I Agree,” clicked “Accept” or “I
Agree” without reading the ULA, or ever saw the ULA in general). It’s also unclear what is
meant by this Interrogatory’s reference to “clicking their acceptance” of the ULA, as it
contradicts Plaintiffs understanding of the installation process for the free screensaver
application (e.g., Plaintiff Harris was never presented with a hyperlink to the ULA during the
installation of the free screensaver application).
Subject to and without waiving these objections, Plaintiff Harris incorporates by
reference his answer to comScore’s First Set of Interrogatories to Mike Harris and Jeff Dunstan,
Interrogatory No. 5. Furthermore, it is Plaintiff Harris’s position that comScore’s method of
bundling OSSProxy (or its Mac equivalent) with the free screensaver he downloaded, the
installer’s process of presenting the Downloading Statement, and the data actually collected by

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OSSProxy, rendered any agreement formed by the Downloading Statement nonbinding (Plaintiff
Harris, as a member of the Subclass, was never presented with a hyperlink to the ULA.)
Likewise, the fact that comScore did not take and never intended to take any steps to either filter
or purge any confidential information collected by OSSProxy (or its Mac equivalent)
additionally rendered any agreement formed by the Downloading Statement nonbinding.
Plaintiff Harris states in the alternative that if any binding agreement was formed through the
screensaver installation process, the agreement is only between himself and VoiceFive, Inc.
Plaintiff Dunstan incorporates by reference his answer to comScore’s First Set of
Interrogatories to Mike Harris and Jeff Dunstan, Interrogatory No. 5. Furthermore, it is Plaintiff
Dunstan’s position that comScore’s method of bundling OSSProxy with the PhotoCutter
software he downloaded, the installer’s process of presenting the Downloading Statement and
ULA, and the data actually collected by OSSProxy rendered any agreement formed by the
Downloading Statement and ULA nonbinding. Likewise, the fact that comScore did not take and
never intended to take any steps to either filter or purge any confidential information collected by
OSSProxy additionally rendered any agreement formed by the Downloading Statement and the
ULA nonbinding. Plaintiff Dunstan states in the alternative that if any binding agreement was
formed through the PhotoCutter installation process, the agreement is only between himself and
TMRG, Inc. Plaintiffs further state that, at this stage of the litigation (e.g., with having conducted
only discovery into class-wide issues per comScore’s request to bifurcate discovery), Plaintiffs
have not had a sufficient opportunity to gather certain further information, which they anticipate
will be responsive to this Interrogatory. Plaintiffs believe that merits discovery will reveal such
additional information. Plaintiffs’ investigation continues and they reserve their right to
supplement their answer to this Interrogatory as appropriate.

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20.
Do you contend that the Defendant failed to make commercially viable efforts to
purge Plaintiffs’ confidential information? If so, describe in detail the basis for your contention
and state in detail what efforts you contend were required to make Defendant’s efforts to purge
such information commercially viable.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected by the attorney work product doctrine. Plaintiffs further object on the basis
that this Interrogatory is duplicative of other requests (See, e.g., Request No. 14).
Subject to and without waiving these objections, Plaintiffs state that, based on their
understanding of comScore’s business practices, it attempts to manually identify and obfuscate
confidential personally identifiable information stored in its databases rather than automatically
filter such information. Plaintiffs agree with comScore’s expert that “the term purged, does not
accurately describe that process.” (See Dep. Tr. of Roberto Tamassia, Ph.D. (“Tamassia Tr.”) at
66:4-6.) Similar to how comScore purges all POST data every two years, Plaintiffs believe that
confidential personally identifiable information should be permanently erased from its databases
immediately and automatically. Plaintiffs anticipate that merits discovery will reveal additional
information responsive to this Interrogatory and they reserve their right to supplement their
answer to this Interrogatory as appropriate.
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21.
Do you contend that Defendant’s use of the “fuzzification” process violates the
SCA, the ECPA, and/or the CFAA? For each such contended violation, cite the applicable
section which you contend was violated and detail the acts or omissions which constitute such
contended violation.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected by the attorney work product doctrine. Plaintiffs further object to this
Interrogatory to the extent that it calls for a conclusion of law (i.e., conclusions about whether

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comScore’s practices constitute violations of the SCA, the ECPA and/or the CFAA), or
otherwise attempts to re-cast legal issues as factual matters.
Plaintiffs state that, at this stage of the litigation (e.g., with having conducted only
discovery into class-wide issues per comScore’s request to bifurcate discovery), Plaintiffs have
not had a sufficient opportunity to gather certain further information, which they anticipate will
be responsive to this Interrogatory. Plaintiffs believe that merits discovery will reveal such
additional information. Plaintiffs’ investigation continues and they reserve their right to
supplement their answer to this Interrogatory as appropriate.
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22.
Do you contend that Defendant contemporaneously intercepted Electronic
Communications from Plaintiffs’ personal computers? If so, describe in detail the nature of the
Electronic Communications you contend were contemporaneously intercepted by OSSProxy
from Plaintiffs’ personal computers to comScore’s servers and the facts which support your
contention.
ANSWER: Plaintiffs object to this Interrogatory to the extent it seeks disclosure of
information protected by the attorney work product doctrine. Plaintiffs further object to this
Interrogatory to the extent that it calls for a conclusion of law (i.e., conclusions about whether
comScore’s practices constitute contemporaneous interceptions), or otherwise attempts to re-cast
legal issues as factual matters.
Plaintiffs state that, at this stage of the litigation (e.g., with having conducted only
discovery into class-wide issues per comScore’s request to bifurcate discovery), Plaintiffs have
not had a sufficient opportunity to gather certain further information, which they anticipate will
be responsive to this Interrogatory. Plaintiffs believe that merits discovery will reveal such
additional information. Plaintiffs’ investigation continues and they reserve their right to
supplement their answer to this Interrogatory as appropriate.

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As to Plaintiff Mike Harris’s Answers:
MIKE HARRIS,
Dated: September 5, 2013

By: _____________________________

As to Plaintiff Jeff Dunstan’s Answers:
JEFF DUNSTAN,
Dated: September 5, 2013

By: _____________________________